People ex rel. Thorne v. Hays

Full title: THE PEOPLE ex rel. ISAAC N. THORNE et al. v. JOHN C. HAYS, the Sheriff of…

Court: Supreme Court of California

Date published: Apr 1, 1854

4 Cal. 127 (Cal. 1854)

Opinion

[Syllabus Material] [Syllabus Material] Appeal from the Superior Court of the City of San Francisco.

The bill in this case seeks to compel a conveyance, by the defendant John C. Hays, the Sheriff of San Francisco, of certain lands levied upon as the property of the City, under executions issued upon certain judgments against the City of San Francisco, rendered on the 6th and 18th of September, 1851, in favor of one Peter Smith and one Jesse D. Carr, for the sums of $ 13,960 and $ 4,000, respectively, stating that the property was sold by the Sheriff and purchased by the complainants on the 30th of January and 1st and 2d of February, 1852.

The property in controversy was redeemed under the provisions of the Act of April 29th, 1851, on the 29th day of July, 1852, by Stephen R. Harris, the Mayor, as the agent of the city, and by the defendants, Commissioners of the Funded Debt of the City of San Francisco, in the name of said city.

The cause was tried by the Court without a jury.

The finding of the Court was in ten items:

1st. That two certain judgments were recovered against the City of San Francisco, as follows: One on the 6th of September, 1851, for $ 13,960 and costs, by Peter Smith, on his complaint, filed in this Court, on the 14th of January, 1851, and one on the 18th of September, 1851, for $ 4,000 and costs, by Jesse D. Carr, on his complaint, filed in this Court, on the 29th day of July, 1851, and that both of said judgments were recovered upon contracts for the payment of money made and due and payable prior to the 20th day of April, A. D. 1851.

2d. That executions were issued upon said judgments, and levies made, in virtue thereof, upon the property of the City of San Francisco, described in the schedule annexed to the relator's complaint.

3d. That at a sale or sales made under and by virtue of the said executions by the respondent J. C. Hays, as Sheriff, on the 30th of January and the 2d day of February, A. D. 1852, the relators became the purchasers of the portion of the said property described and set forth in the schedule annexed to the said relator's complaint; that they paid the purchase money therefor, and the said Sheriff did thereupon make, in their favor respectively, certificates of their purchases, wherein it was stated that the said property purchased by them respectively was subject to redemption, but refused to make his official deeds of conveyance for the same to them, or any of them, though requested so to do.

4th. That all objections to the form of this action, and to the joinder of several parties as plaintiffs herein, were expressly waived by the defendants, who also agreed that the decision hereof shall apply to the rights of each of the relators, as fully as if they had each brought separate suits.

(The 5th, 6th, 7th, 8th and 9th items of the finding of the Court are recited, verbatim, in the opinion of Mr. Justice Wells.)

10th. That by the sales of the 30th of January and 2d of February, 1852, aforesaid, the entire balance due on said execution, principal, interests and costs and expenses of sale, was fully paid and satisfied.

The Court, upon the finding, gave judgment for the plaintiffs, on the ground that no legal or valid redemption had been effected; that Stephen R. Harris, the Mayor of the City of San Francisco, and Messrs. Morse and Sanders, Commissioners, etc., were not, nor were any or either of them, by virtue of their offices or otherwise, authorized to redeem the funds in question.

The defendants appealed.

COUNSEL

The Act of29th of April, 1851, is retrospective. (See §§ 229 and 648; 2 Doug. Mich. 197; Bartlett v. Lang , 2 Ala. 405; Iverson v. Shorter , 9 Ala. 715; Vedder v. Alkenback, 6 Barb. 328.)

The redemption was well made. A taxpayer, the Mayor and Commissioners have each a right to redeem. (Dubois v. Hepburn, 10 Pet. 1; Patterson v. Brindle, 9 Watts, 98; 4 Barr. 277; 4 Cow. 422; 5 Wend. 95; 1 Cow. 510; 15 Wend. 251.) The Commissioners held the property of the city as Trustees; it was therefore their duty to redeem, and from that duty the right to redeem sprung. (Story Eq. Jur. § 1275-6.) The sale was made subject to redemption, in point of fact, and the plaintiffs, having purchased under it, are estopped by their own act from setting up the unconstitutionality of the law. (Small v. Carr. 1 Lit. 16; Rudd v. Miller, Russel v. Dudly, 3 Met. 147; Burnett v. Barbour, 1 Lit. 397; Chitty v. Glen, 3 Monr. 426; Embury v. Connor , 3 N.Y. 511; Lee v. Tilghman, 24 Wend. 338; Clay v. Smith, 3 Pet. 411; The People v. Livingston, 6 Wend. 526.)

A party may, by parol or his acts, renounce or waivea constitutional provision made for his benefit, as well as a statute provision. (3 N.Y. 518; 6 Hill, 47; 5 Hill, 472; 24 Wend. 337.)

No one but the party whose rights are affected by an Act of the Legislature can plead its unconstitutionality, after endeavoring to take the benefit of the law to the injury of others, or after acting under the law. (3 Marsh. 515; 1 Lit. 397; 4 Watts & S. 221; 5 Hill, 472; 10 How. 215; 3 Pet. 411.)

The law authorizing the redemption is constitutional as to contracts made before as well as after its passage. (1 Tex. 600; 1 N.Y. 129; 8 Black, 108; 3 Story on the Con. 250; Bruce v. Schuyler, 4 Gilm. 277; Chadwick v. Moore, 2 Watts & S. 49; Iverson v. Shorter , 9 Ala. 713; James v. Still, 9 Barb. 482; Evans v. Montgomery, 4 W. & Serg. 220; 4 Wheat. 193.)

Hepburn and Thomas and Hoge, for Appellants.

Nathaniel Bennett and William J. Shaw, for Respondents.

Statutes not in terms prospective, should be so construed as not to affect past transactions, especially where such construction would work injustice. (Quackenbush v. Danks , 1 Denio, 128; Sackatt v. Andrass, 5 Hill. 334; 2 Inst. 492; 1 Black. Com. 45; Bac. Abr. Statute(C.) Dwarr. on Statutes, 680; Dash. v. Gleed, 7 Johns. 477; Von Schmidt v. Huntington , 1 Cal. 65; Mattheson v. Weller , 3 Denio, 52; Vedder v. Alkenback, 6 Barb. 327.)

The Act of April 29th, 1851, is unconstitutional. (Bronson v. Kinsie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Green v. Biddle, 8 Wheat. 1; Quackenbush v. Danks, 1 Denio; 3 Denio, 594; 1 N.Y. 129; 1 Kent Comm. 419.)

Concerning that the lands sold in this case were sold subject to the right of redemption, no legal redemption was actually made. (2 Watts, 443; 4 Kent Comm. 429, 430, 431; Waller v. Harris, 20 Wend. 555; The People v. Beebe, 15 Wend. 248; Sullivan v. Wing, 7 Hill, 159; Hodges v. Gallup , 3 Denio, 527; ex parte Wood, 4 Hill, 542; Van Renseelaer v. Sheriff, 1 Cow. 510; Sweazy v. Chandler , 11 Ill. 445; Chandler v. Santed , 22 Vt. 318; People v. Barker, 20 Wend. 602; Dickinson v. Gilliland, 1 Cow. 481; The Bank of Virginia v. Warren, 7 Hill, 91; Walter v. Hauls, 7 Paige, 157; Hall v. Fisher, 1 Barb. Ch. 53; The People v. Luther, Sheriff, 1 Wend. 42; People v. Sheriff, 19 Wend. 87; ex parte Shumway , 4 Denio, 258; ex parte The Bank of Monroe, 7 Hill, 177; ex parte Raymond , 1 Denio, 272; Shotwell v. Denman, Code, 174.)

JUDGES: Mr. Justice Wells delivered the opinion of the Court. Mr. Ch. J. Murray concurring. Mr. Justice Heydenfeldt dissenting.

OPINION

WELLS, Judge

This case has attracted more attention, and excited deeper interest than any other ever presented to us; and we have departed from the general rule by hearing four counsel on each side. The questions presented are numerous and complicated.

In view of the importance of the decision as affecting other transactions, as well as establishing precedents to govern us hereafter, we have examined minutely the points raised by counsel.

Primarily, two propositions are advanced. The first is: That the Redemption Act, as it is called, does not apply to this case, for the reason that by the rule of construing statutes, it was intended by the law-making power that it should have a prospective, and not a retrospective effect; and for the further reason, that if it was designed to have a retrospective action, then the law is in contravention of that clause of the Constitution of the United States, which prohibits the several States from passing laws impairing the obligations of contracts.

Let us consider the first. Shall the Court, in construing the 229th section of the Practice Act, authorizing the redemption of real estate, give to the statute a retrospective operation?

It will not be denied that, by general rule, statutes not expressly made retrospective in terms, should not be so construed as to affect past transactions, especially where such construction would work injustice or disturb vested rights. The reasoning of Chief Justice Bronson, in Quackenbush v. Danks , 1 Denio, 130, cannot but commend itself favorably to every fair judicial mind. He says:

" Whatever may be thought of the expediency of passing exemption laws, if they are wholly prospective in their operation, no wrong is done to the creditor. He has the law before him when he parts with his money, or his property, and it will not be the fault of the Government if the debt is lost. But when such laws are made to act upon past transactions, they cannot fail to work injustice. They take the property, which in honesty and fair dealing belongs to the creditor, and without his consent transfer it to the debtor. The least that can be said of such laws is, that they prove the existence of a bad state of public morals. There is nothing in the statute under consideration which, either in terms or by necessary implication, makes it applicable to the case in hand; and we ought, in decency, to conclude that the Legislature did not intend that it should have the retrospective and unjust effect which is claimed for it by the plaintiff. I will not deny that the general words in which the law is framed, are broad enough to include contracts already in existence, as well as those which should afterwards be made. But it is a well established rule that a statute shall not be so construed as to give it a retrospect beyond the time of its commencement; and there are many cases in the books where general words as comprehensive as those under consideration, have been restricted in their influence so as not to reach past transactions. This is but a branch of that great principle which requires that every law should, if possible, be so interpreted and carried into effect that no wrong will be done to any one."

To this opinion of the learned Judge, so elevated in sentiment, correct in morals, and clearly right in law, we fully subscribe.

The principle announced by him will everywhere be recognized as honest and just. His is not the only opinion that upholds this position. The books are replete with them; and upon a thorough and laborious examination of all the cases cited, our previous convictions yield, not only to the weight of authority, but to the force of reason. We but concur with the great majority of the Judges in England and America, when we assert that it is well established not only as the doctrine of the common law, but as a principle of general jurisprudence, that no statute shall be so construed as to give it a retroactive effect; to divest the rights of individuals vested previous to its passage, or previous to the time the Act took effect--unless such intention be expressed in terms. No argument need be adduced to demonstrate the justice of this principle; the authorities all sustain it. The books say: " It is in the general true that no statute is to have a retrospect beyond the time of its commencement." " The rule and law of Parliament," says Bracton, " is nova constitutio futuris formam debit imponere non preteritis ." Not only is this the doctrine of the English law, but it is founded on the principles of jurisprudence observed in every land. A retroactive statute would partake in its character of the mischiefs of an ex post facto law, as to all cases of crimes and penalties; and in matters relating to contracts or property would violate every sound principle. In Gilvore v. Shuter, a verbal promise was made to give or bequeath a sum of money in consideration of marriage. (See 2 of Atk. 36, and 2 Lev.) The question that arose there was, whether this promise, not being in writing, was within the 29th Car. 2, Ch. 3. The Court said, " It cannot be presumed that the statute was to have a retrospect, so as to take away a right of action which the plaintiff was entitled to before the time of its commencement." Lord Mansfield says (4 Burr, 2460) " here is a right vested; and it is not to be imagined that the Legislature could, by general words, take it away; they certainly meant future actions." (See also the numerous cases cited in Dwarriss on Statutes to the same point, from 539 to 547.) This doctrine rests not alone upon the English common law. It derives authority from the Ancient Roman Civil Law (see Taylor's Civil Law, 169, and Roman Appendix), and also from the civil law of modern and enlightened France. When she was at the eminence of learning and science, the Code Napoleon adopted the rule. Indeed, long before Napoleon had risen to power, in the days of the Republic, when Robespierre, Marat and their compeers controlled her destinies, before the First Consul had attained eminence or dreamed of the imperial sceptre--in the midst of bloody scenes of tumult and revolution--even then this principle was preserved by the law-making power. In the Constitution of the French Republic of 1795, an article will be found to the effect that no law, criminal or civil, could have a retroactive effect. " Aucune loi, ni criminelle, ni civille, ne peut avoir d'effet retroactif ."

Chancellor Kent employs stronger language than this, in his Commentaries, and asserts that: " Even French despotism, atrocious as it is in practice, yields in its laws to this principle; for the same limitation is laid down as a fundamental truth in the code now in force, under the sanction of the French Empire." " En general les lois n'ont point d'effet retroactif, le principe est incontestable," etc. Discours Preliminaire du Premier Project du Code Civil, Art. 2, Titre Preliminaire de la Publication Des Lois; " La loi ne dispose que pour L'avenir; elle n'a point d'effet retroactif ."

The Princes and Emperors of Rome in the pride and plenitude of power, observed this just rule, with the exception of Caligula, whose despotism and iniquity in withholding it, has subjected his memory to execration for all time. The criticism upon the technical term ex post facto amounts to nothing. The great leading principle which we assert applies as well to civil as to criminal cases. (Coke's Litt. 360; 1 Blacks. p. 45.)

But why go to the civil law of Rome, the code of France, or the common law of England? The best authorities in American jurisprudence have approved and maintained the doctrine we assert. The case of Quackenbush v. Danks, (where the opinion was delivered by one of the ablest and purest men that ever held a judicial position), is conclusive. The reasoning cannot be confuted. But out of deference to the opinion of my associates, I will examine the American authorities cited by counsel, which are relied upon to sustain the opposite doctrine to that laid down by Chief Justice Bronson. Before proceeding to this branch of the case, we will pause to consider the suggestion that the repeal of the Act of 1850 left the judgment creditor destitute of all remedies, except such as were provided by the Act of 1851. A law introducing new requisites will not avoid a contract that was valid before the law passed. Upon this point, Lord Denham stated that the Court of Queen's Bench was of opinion " that the law as it existed when the action was commenced, must decide the rights of the parties in the suit, unless the Legislature expressed a clear intention to vary the relations of the litigant parties to each other." (Hitchcock v. Way, 6 Adol. & E. 943; Surtees v. Ellison, 4 Man. & R. 586, S. C.; 9 Barn. & C. 750.)

The rule is laid down by Lord Tenterden to the same effect, in the opinion to which we have been referred. He says that " when an Act of Parliament is repealed, it must be considered the same as if it had never existed, except with reference to such parts as are saved by the repealing statute." And the language of Lord C. J. Tindall, in 4 Moore & Payne, does not differ from the rule. No one will question the right of Parliament or the Legislature to repeal statutes where subsisting rights are not disturbed, or the obligations of contracts impaired. Nor is it necessary to deny that the right to pass retrospective laws of a remedial character, rests in the Legislature. Having examined all the English and civil law authorities cited, we now proceed to the American cases, many of which would be strong against the appellants, if correctly quoted and read. For example: In the case of Boyce v. Holmes , 2 Ala. 54, the syllabus says: " It is a rule of construction, founded on the principles of general jurisprudence, that a statute is not to have a retrospective effect beyond the time of its enactment." And the reasoning of the Chief Justice is in accordance with this rule.

In Calder v. Bull, 3 Dall. 386, Mr. Justice Chase held " that every law that takes away or impairs rights vested agreeably to existing laws, is retrospective and unjust, and that it is a good general rule that a law shall have no retrospect." The Chief Justice of Alabama proceeds to say: " The construction contended for on the part of the defendant would make the statute operate unjustly. It would make it defeat a suit already commenced upon a right already vested. Nothing could be more alarming than such a subversion of principle. It is a principle of English common law, as ancient as the law itself, that a statute, even of its omnipotent Parliament, is not to have a retrospective effect." And he cites, to the same effect, the following cases:

Ogden v. Blackledge, 2 Cranch. 272; United States v. Fisher , 2 Id. 358; Bradelstone v. Sprague, 6 Johns. 101; Osborn v. Huger, 1 Bay, 179; People v. Tibbets, 4 Cow. 384; Bedford v. Shilling, 4 Serg. & R. 401; Ogle v. The Somerset and Mt. Pleasant T. Co. , 13 Id. 25; Philips v. Gray , 1 Ala. 226; The Society, etc. v. Wheeler, 2 Gall. 105; Woart v. Winnick , 3 N.H. 473; Dow v. Norris , 4 Id. 19; Miller v. Dennett , 6 Id. 109. The case of Rathbone v. Bradford , 1 Ala. 312 does not apply.

It is not necessary for us to deny that a statute, in which no time is expressed when it shall become operative, takes effect from its passage; or that it was competent for the Legislature to change the time when the Courts should be holden, and thus expedite or delay a remedy. The authority is inapplicable, for the reason, that in the statute we are considering, passed 29th of April, it was provided that it should not take effect until the first of July following. The same remark applies to Dale v. The Governor, in 3 Stew. 387. We do not question the correctness of the doctrine there advanced, to the effect that the Act passed was an Act of ordinary legislation, and created no obligation or contract on the part of the State, nor vested any right. We have made a similar decision in the case of the Executors of Bigelow v. The City of Sacramento, where the donation or bequest was not accepted before the repeal of the Act or ordinance; in other words, before the right became vested. We are next referred to the case of Iverson v. Shorter , 9 Ala. 713, wherein the Court says: " It is contended the statute should be restricted to such judgments as are obtained after its enactment. There is no room to give this restriction without departing from the very letter of the law, which directs that all sales 'henceforth made,' shall be governed by it. In New York, these statutes are considered remedial, and as such, entitled to be construed in the most liberal manner, to advance the remedy." (Van Renseelaer v. Sheriff of Albany, 1 Cow. 501.) With us, statutes giving a new remedy, have frequently been construed to apply to suits then existing--( Bartlett v. Lang , 2 Ala. 404)--and such is believed to be the general construction with respect to such statutes, unless the intention is apparent to restrict their operation. The opposite rule applies when statutes seem to affect existing rights. (Boyce v. Holmes, 2 Ibid. 54.) Upon an examination of this opinion, and the authorities cited, it will be found that the Court have relied upon the loose dicta of the Supreme Court of the State of New York as to remedial statutes.

What is a remedial statute? Blackstone says: " Remedial statutes are those which are made to supply such defects, and abridge such superfluities in the common law as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determination of unlearned (or even learned) Judges, or from other cause whatsoever." This definition will not apply either to the case before us or to that cited from 9 Ala. In the latter case, the Court adopts the dicta of Cowen, but in its final decision, abandons them, and adheres to the principle laid down in Boyce v. Holmes , 2 Ala. 54. Upon examination, we are satisfied that the decision will sustain the view we have taken here, as to the construction to be placed upon the retroactive effect of statutes, and the repeal of them. In view of the constitutional question involved, we shall hereafter consider more fully this opinion in Iverson v. Shorter .

The next case upon which reliance is placed to sustain the counsel for appellants, is that of Rockwell v. Hubbell, 2 Doug. Mich. 197. Reluctant as we are to question the opinion of the Supreme Court of another State, of equal powers, we are unwilling to believe that any intelligent counsel will seriously assert that the principle upon which that case turned, is sound in law, or applicable to the case now under consideration. The Court, in the case cited, deferentially doubts the correctness of the judgment of the U.S. Supreme Court. We, with equal deference, prefer to yield our opinions to the last named tribunal, as being safer than following the course of the learned Judges of Michigan. 2 Hill, 380, is cited. In that case, Cowen, J. says: " It is a general rule that a statute affecting rights and liabilities should not be so construed as to act upon those already existing. To give it that effect, the statute should declare in terms, an intention so to act." We are referred also to The People v. Herkimer Common Pleas, 4 Wend. 210. The case does not apply.

The Court, Marcy, J. says: " That the statutes there in question take up the proceedings in causes pending where they find them; and where the statutes under which proceedings were commenced are repealed," the subsequent proceedings must be regulated by the Revised Statutes. Here, it will be seen, that the question was as to costs of suit, and not as to contracts or any vested right, and differs from the one before us in this: that the statute takes up the proceedings in causes pending where they find them, and does not contain a saving clause for the protection of proceedings already commenced; besides the opinion of Justice Marcy has since been several times overruled by higher tribunals. The People v. Livingston, 6 Wend. 526 (another case cited as authority by the appellants) does not sustain their position. The Court says: That it cannot be denied that the Legislature possesses the power to take away by statute what was given by statute, except vested rights; and the distinction is drawn between the repealing Act of 1813, and the Act of 1828, upon the latter of which both these decisions depend. The latter cases are revised in Wadsworth v. Thomas, 8 Barb. 445, in which it was conceded that in this case, with others cited, the statute should be construed to act prospectively, and not retrospectively. But why multiply the citations? The authorities all agree, at least all those that are reliable, upon the general principle we assert. The principle needs no law writer to vindicate it. It is too strongly founded in reason to be disturbed by any assault that subtlery, sophistry, or criticism can make. The presumption is, that the Legislature did not intend to pass any law that would affect past transactions, or work injustice; and such is the construction that must be given to this law. Again: the act was not only not retrospective in terms, but is expressly prospective, and limited to suits commenced after it took effect. The statute we are considering, was passed on the 29th of April, 1851, but by its terms did not take effect until July following, and then, by a saving clause, provided that the repeal of the old statute should not invalidate any judgment or order made, or any proceeding already taken by virtue of the former statute.

It is contended that the proposition as to retrospective operations of statutes depends upon the constitutional question, and that they must stand or fall together; that the last supports the first, and that the only objection to a retrospective law is, that it impairs the obligations of contracts.

We think there is a broad difference in the two propositions, and being satisfied that our conclusions are correct in regard to the first, we proceed to the second, involving the constitutionality of the law.

The suit on which judgment was obtained, and under which the respondents purchased, was commenced, and proceedings taken therein, before the statute providing for redemption took effect. It therefore came clearly within the rule by the express words of the statute, and the right for an absolute sale became vested. The conclusion at which we have arrived is, that the repeal of the former statute was not intended to operate upon cases pending, rights vested, or proceedings commenced before the Act took effect. Such repeal could not, nor was it intended to affect the rights of parties. It is alleged that the intention was to repeal the former statute altogether. To do so would have been to strip the creditor of all remedies. The fairer presumption is indicated by the saving clause. It applies only to cases in futuro .

We would rest here, but that arguments have been urged most strenuously upon the constitutional point. Upon that branch of the subject we are relieved from whatever doubt we may have entertained, not only by our own deliberative consideration of the subject, and the impregnable position of the U.S. Supreme Court, in Bronson v. Kinzie, in 1 How., but by the confirmation of the doctrine by the same high tribunal, in McCracken v. Hayward, 2 How., upon full review.

Decisions of Courts should be such as to secure quiet and repose, and not engender a spirit of litigation, or waste property and time in a lingering act. They should be uniform and consistent. We cannot say that the law is unconstitutional, when the amount involved is small, and constitutional, when it is large and works a hardship or affects the public welfare. The Supreme Court of the United States has decided this question in one case, and confirmed it in another. Some of the new States have, however, persisted in times of depression, when pecuniary distress became general, in the endeavor to avoid the obligations of contracts, by delaying the creditor through redemption, exemption and limitation laws, and the Courts of those States have endeavored to sustain them, but in no case, that I find, by sound reasoning. The radical spirit infused into the minds of men in hours of trouble, which in years past influenced to some extent legislative power in different States, has been stayed by the firmness of the highest Court in the Union. The distinction attempted to be made between the obligation and the remedy, is against the principle held in the cases cited. (Sturges v. Crowninshield, 4 Wheat. 122; Evans v. Montgomery, 4 Watts & S. 220, etc. etc.) In those cases the view presented is, that there might be alterations of the remedy, providing they did not seriously impair it. " Such an admission," says Chancellor Kent, " is dangerous from its liability to misconstruction and abuse." Alterations, although going to the former proceeding only, may practically destroy the obligation, by stripping the creditor of all effective means of enforcing it. He contracts in good faith under the existing laws; both parties are presumed to understand them, and the creditor relies upon their efficacy for his protection. Suppose the Legislature, before the debt arising from such contract became due, should abolish all laws for the collection of debts, and that such abolition should, by the language of the statute, or the interpretation of the Court, be construed to affect past transactions, would not the obligation of the contract be impaired? To burden the remedy with new restrictions, to make it useless, or hardly worth pursuing, is as much a violation of the Constitution as to deny all remedies. Had

the judgment creditor in this case any rights affected by the application of the redemption law to his contract? It will not be denied that at the time of the contract his right was absolute, (and therefore vested), in the language of the Supreme Court of the United States, " to sue, recover judgment, take out execution, and sell absolutely." By the change of the law, the right of absolute sale is taken away, and a provision substituted, which not only hinders and delays him in recovering his money, but renders him insecure in the hope of it, and might in many instances totally destroy his rights by nullifying them. It is said that a substantial remedy is left; but if the Legislature can delay payment by limitation or exemption laws for six months, they may do it for six years: Hence the cautious apprehensions of the sages of the law, who tell us that such a construction would be pregnant with mischief, and liable to abuse. The highest authorities among American jurists, and the most learned expounders of the Federal Constitution, concur in the rule, that the suspension, by statute, of remedies, or any part thereof existing when the contract was made, is more or less impairing the obligation of the contract. It is said that the authorities only apply to those cases where the remedy is denied. Such is not the language of the Constitution-- it says impaired. There is very little distinction between the cases of Bronson v. Kinzie and the one at the Bar. No redemption law existed in either case at the time the contract sued upon was made; in both cases the law was passed subsequent to the making of the contract, and before final judgment. The decision of the Federal Court is therefore applicable to this case. From the decision in 2 How., affirming that in the first of the same work, it is said Judge Catron dissented. Upon examination it will be found that the assertion is erroneous. The decision of the Court was unanimous, and the learned Judge named agrees with his brethren on the Bench, and upholds the doctrine here advanced. He hesitates only upon those laws in other States, wherein " no distinction is made between contracts made before the passing of the Act, and those made afterwards; " evidently pausing at the threshold of the question we have heretofore discussed, as to retroactive laws, and apprehending with Chancellor Kent that a decision upon

that point might be misconstrued and lead to abuse. This opinion of Judge Catron is in accordance with our own. Mr. Justice Story, delivering the unanimous opinion of the Court upon the first hearing, says: " It is no answer that the Acts of Kentucky now in question are regulations of the remedy, and not of the right to lands. If those Acts so change the nature and extent of existing remedies as materially to impair the interest and rights of the owner, they are just as much a violation of the compact as if they had overturned his rights and interests." (See Green v. Biddle, 8 Wheat.) The question there arose under the seventh article of the compact made between Virginia and Kentucky upon the separation of the latter from the former State, and depended upon two several Acts passed in 1797 and 1812, by the Legislature of Kentucky. These Acts were held by the Supreme Court upon two hearings in the opinion we have cited, to be unconstitutional and void, as impairing the obligation of the compact between Virginia and Kentucky. Story in his Commentaries sustains the opinion he delivered on the Bench. (See § 1398.)

The proposition already asserted is presented in a different light from the one we have just examined, but illustrates the principle that the property of the debtor, or any part thereof, cannot be subtracted from the creditor's claim, or divest his lien thereon, and be appropriated to the benefit of the debtor. This agrees fully with the rule laid down in Quackenbush v. Danks. The creditor whose contract is made under an existing statute, should not be deprived of his rights by the paralyzation of his remedy. It would not be honest, just or correct, either in ethics or in law.

Assured that we can safely depend upon the decisions of the U.S. Supreme Court, which concur with our own, we leave this branch of the question.

But conceding, for the sake of argument, that the law was to have a retrospective effect, and also that it was constitutional--Was the redemption legally perfected? In the solution of this problem, we must consider several questions made at bar:

I. Was it made in time?

II. By the proper parties?

III. In a legal manner? First--As to the question of time. Although urged by counsel, the case will turn upon points of more moment and consequence, and we dismiss it with the view of examining the others. To enable us to do this, we must refer to the statute we are to construe, and the findings of the Court as to the facts.

" Section 229. (See Civil Practice Act.) Upon a sale of real property, when the estate is less than a leasehold of two years unexpired term, the sale shall be absolute. In all other cases, the real property shall be subject to redemption, as provided in this chapter. The officer shall give to the purchaser a certificate of the sale, containing

1st. A particular description of the real property sold.

2d. The price bid for each distinct lot or parcel.

3d. The whole price paid.

4th. When subject to redemption it shall be so stated, a duplicate of which certificate shall be filed by the officer with the Recorder of the County.

" Section 230. Property sold, subject to redemption, as provided in the last section, or any part sold separately, may be redeemed in the manner hereinafter provided, by the following persons or their successors in interest:

1st. The judgment debtor, or his successor in interest, in the whole or any part of the property.

2d. A creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdivision of this section are in this chapter termed redemptioners.

" Section 231. The judgment debtor or a redemptioner may redeem the property from the purchaser within six months after the sale, on paying the purchaser the amount of his purchase, with eighteen per cent thereon additional, together with the amount of any assessments or taxes which the purchaser may have paid thereon after the purchase, and interest on such amount; and if the purchaser be also a creditor, having a lien prior to that of the redemptioner, the amount of such lien with interest. " Section 233. The payment mentioned in the last two sections may be made to the purchaser or redemptioner, as the case may be, or for him, to the officer who made the sale; and a tender of the money shall be equivalent to payment."

The following are all the findings that are necessary to consider at this point of the case:

5th. That on the 29th day of July, 1852, Stephen R. Harris, then the Mayor of the City of San Francisco, and P. A. Morse and B. C. Sanders, two of the Commissioners of the Funded Debt of the City of San Francisco, all being citizens and tax-payers in said city, did attend before the said Sheriff, at his office in said city, and did then and there, for the purpose of redeeming the said property purchased by the relators and certain other property sold to other persons at the same sale, deliver to him one certified check for the sum of $ 17,969, being an amount equal to, or exceeding the sum paid by the said relators and others, to the said Sheriff, for the property so sold at the aforesaid sale or sales thereof, together with eighteen per cent added thereto, and the further sum of $ 500, in one check, to cover any taxes or assessments which the purchasers might have paid, with direction to the Sheriff, and promise by him, to ascertain and pay out of said sum to each of said relators, as well as other persons who might thereto be entitled, the full sum of money to which each of said relators and others should be found entitled, by the amount of purchase money which each respectively had paid in to said Sheriff, in virtue of said sale or sales, with eighteen per cent interest thereon.

6th. That Stephen R. Harris, Mayor, etc. and P. A. Morse and B. C. Sanders, Commissioners of the Funded Debt, etc., at the time last mentioned, claimed to act for and in behalf of the City of San Francisco, and claimed and intended to redeem said lands for and in behalf of the City of San Francisco.

7th. That the said Sheriff did receive the said checks, and after ascertaining that his bankers would take them as so much money, did accept and receipt for the same, as for so much cash to him paid, and that said checks were afterwards, on the same day, deposited by said Sheriff with his said bankers, who, on the next day, July 30th, 1852, collected the said checks and received the cash for the same; and that the said sum in money, or so much thereof as has not been received by any of the purchasers at said rate, is now on deposit with said Sheriff's bankers, and ready to be paid to the relators as they may be thereto respectively entitled, and that no part thereof has been at any time received by the relators, or any of them; but they, and each of them, have at all times refused to accept the same, or any part thereof.

8th. That the said Stephen R. Harris, Mayor of the City, and the said Morse and Sanders, did not appear before the said Sheriff, or do any act to effect a redemption of the said property, in virtue of any ordinance, direction or resolution of the Common Council of the said City of San Francisco.

9th. That the Common Council of said City of San Francisco has not passed or adopted any act, or ordinance, or resolution, directing, authorizing, approving, or adopting the act or acts of the aforesaid persons, who undertook to redeem the said property as aforesaid, or either or any of them, and that no redemption of the said property has been undertaken or effected under the direction or by any authority of the Common Council of the said City of San Francisco, or with its approval or sanction at any time since the said 29th day of July, 1852; that Stephen R. Harris, Mayor of the City of San Francisco, and Messrs. Morse and Sanders, Commissioners, etc., were not, nor were any or either of them, by virtue of their offices or otherwise, authorized to redeem the lands in question.

1. As to the parties. The Court below finds, that no legal or valid redemption has been effected; that Stephen R. Harris, Mayor of the City of San Francisco, and Messrs. Morse and Sanders, Commissioners, etc., were not, nor were any or either of them, by virtue of their offices or otherwise, authorized to redeem the lands in question.

It is said that the act of the Mayor was the act of the city. This proposition cannot be sustained.

The powers and duties of the Mayor are defined by the charter; but it is asserted that the act of redemption was properly the duty of the Mayor, as chief executive officer; in other words, it was an executive and not a legislative act.

What is an executive officer?

He is one in whom resides the power to execute the laws. It will not be pretended that his Honor, the Mayor, undertook to execute any law in making the pretended redemption. The record shows, and the finding is, that no such law was passed. The answer is decisive. The Mayor could not legislate! If he could, so also could the City Treasurer, the Street Commissioner, or the Collector of Taxes. They are all executive officers as well as ministerial. By way of illustration, let us consider how this would operate. Suppose the Treasurer should take twenty thousand dollars of the public money and purchase a lot upon his own volition, under the hallucination that it would benefit the corporation; or that the Tax Collector, thinking that a piece of property was about to be sacrificed, should apply funds collected for taxes to a like purpose; or that the Street Commissioner, under the impression that it would benefit the corporation, should undertake to open and grade streets at his own option? We need not go farther than to present the propositions, to show their absurdity. These are all executive officers; and if it be true that the Mayor has the right to buy, sell or redeem, the others have the right also. It is clear that they and the Mayor had no right to redeem, and the finding of the Court below is correct.

The Common Council refused to give him or anybody else such authority. Acting in their legislative capacity, they declined the redemption; reposing doubtless upon the legal advice they had summoned to their aid; believing that the transfer of the city's interest to the Commissioners of the Sinking Fund was valid, and that the sale was of no avail, therefore resolved that they would not expend for redemption the sum named, and the costs and expenses with the taxes and assessments; considering that the interests of the city were not involved in the question mooted. But it is urged that, being for the interest of the city, it was the duty of the Mayor to redeem. We have nothing to substantiate this assertion. How can we decide as to the interest of the city? That was a decision for the legislative department of the City Government, and many substantial reasons are presented to maintain the position assumed, which was contrary to that asserted by counsel. It is said that this property is worth millions of dollars. This fact does not appear upon record, and if it did, it could have no effect upon the decision of this Court upon the constitutionality of a law, or the construction of statutes. Suppose the property was not worth one thousand dollars, and that, through connivance, or in any other way, it should be sold for fifty thousand, will any one assert that the Mayor could come forward with the public money and redeem at that price? Could he thus use the public money? No warrants were drawn by the Comptroller upon the Treasury; none authorized by law or ordinance, and none of the city's moneys paid. Then was the act authorized by the corporation? Certainly not. An aggregate corporation cannot contract without vote, and in no other way can a corporate body express consent. (Maxwell v. Dulwhich College, 4 L. J., N. S., Ch. 131; Essex Turnpike Co. v. Collins , 8 Mass. 298, 299.) An agent acting for a corporation must do so by vote, otherwise his agency is void. (Angel & Ames on Corporations, p. 232; and cases cited and note 4, Mass. Reports.)

No vote was proven; on the contrary, the corporation refused to approve the act, and so the Court found. It is said that a ratification supplies the want of previous authority, and we are referred to the maxim: " Omnis ratihabitio retrotrahitur et mandato equi paratur. " The law and the logic is almost as bad as the Latin. Every ratification has a retrospective operation, and is equivalent to a previous demand. (Coke on Lit. 207, 208.) This principle has often times been applied and adopted by the best jurists of the country, in defining the law of principal and agent. Buthe point is this: Was the act ratified by the corporation? No evidence was adduced to prove it, and the verdict is that it was not. It is insisted that the District Attorney, in his plea, ratified it. He had no authority to do so. He could not ratify an act which the Council declined; and we must enumerate him with those other municipal officers whom we have already declared were unauthorized to exercise legislative powers. The next inquiry is--Did the Commissioners of the Funded Debt redeem? This involves the question already viewed, as to the right of one or two members to act without the approbation of the Board, and which is disposed of by the authorities cited from Angel & Ames on Corporations.

They had no authority. Neither did they act as Commissioners of the Funded Debt. From the record, it appears they claimed to redeem for the city, and not for the Commissioners of the Funded Debt.

The statute devoted all moneys coming into their hands to the extinguishment of the Funded Debt. They could not employ the funds consecrated to this honest purpose to redeem, purchase or speculate in city property. Such use of the public money was in violation of law.

Were they successors in interest? No! First, because this Court has already decided in Smith v. Morse , 2 Cal. 524, that the transfer to the Commissioners of the Sinking Fund was illegal, under the Statute of Frauds, which prohibits the fraudulent assignment of property to hinder or delay creditors, and for the further reason, that the Act establishing the Commissioners of the Funded Debt has never been consummated.

Neither the corporation nor the Commissioners of the Sinking Fund have ever transferred the right or title to the property in question to the Commissioners of the Funded Debt.

They were not successors in interest, judgment debtors, or judgment creditors, and therefore were not redemptioners; yet they presumed to act in the several characters, as Mayor, Commissioners of the Funded Debt, tax-payers and citizens. The Court was consequently correct in saying that they had no authority so to act. For example, look at the position of Mr. Sanders. It is very questionable whether he could hold the office of Commissioner under our laws. The Court may take judicial cognizance of the appointment of Federal officers, and it was well known that he at the period named was the Collector of the port of San Francisco. Article 4, section 21, of the Constitution of California, declares, " that no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this State." It being a reasonable presumption that the office he held was lucrative, he was ineligible to the office he pretended to hold.

It is said that it is not an office; but the law itself declares it to be an office. It provides: " Section 1. That the Commissioners shall hold their offices during good behavior; " it provides for vacancies in such office, and further declares, " that before entering upon the duties of their office, they shall file a joint and several bond for the prompt and faithful discharge of all the duties of their office."

Clearly, then, these Commissioners were officers, and not merely trustees; and, under the 21st section of the Constitution, Mr. Sanders could not hold such office, and his act was a nullity.

In answer to this suggestion, it is urged that his act was good, as an officer de facto; but the general rule and the well known maxim cannot be relied upon, for the reason that here the question as to his right to hold office is directly involved, and it is very doubtful whether the recognized maxim and rule of the common law apply where a positive constitutional prohibition exists.

Again, as to his pretended act as tax-payer and citizen: By section 230 of Act 1851, a judgment debtor may redeem, and we are referred to the 4th section of Pennsylvania Act of March, 1851, Purdon's Digest, 324. Under this last Act, it was held that any right in law or equity, however slight, anything which can be deemed an estate, gives the right to redeem. (Dubois v. Hepburn, 10 Pet. 1; Patterson v. Brindle, 9 Watts, 98.) Upon these authorities it is insisted that the tax-payers are the real parties in interest; that they are the cestui que trusts, and judgment debtors in point of fact; that the city is a mere idea.

Two answers to this proposition suggest themselves at once to our minds: First, That tax-payers cannot be deemed trustees for the city; neither are they judgment debtors in point of law, or indeed of fact.

It is said that the Commissioners of the Funded Debt are the holders of the legal title. If so, the tax-payers had no such estate as would give them the right to redeem. They certainly were not judgment debtors, judgment creditors, or redemptioners, under the Act of April 29th, 1851.

We will not question the correctness of the decision in Patterson v. Brindle, 9 Watts, 98, but that, it will be seen, was upon a statute of Pennsylvania, differing materially from our own.

We cannot assent to the position taken, that tax-payers and citizens are judgment debtors, and thus subject the property of every citizen to the payment of the city's debts.

The case in Connecticut shows the injustice of such a decision. There a party obtained judgment against the county, proceeded to sell the house and lot of a private citizen for a public debt. The injustice of this was so manifest, that the opinion was reversed upon review. A similar case will be found in Massachusetts Reports.

To declare that the property of private citizens is liable to the payment of the public debt, because they are tax-payers, would subject the property of every and any citizen to the obligations of the corporation, and to the payment of the city's debts.

It is suggested that the appellants, Harris, Morse and Sanders, redeemed as individuals, as a munificent bequest to the city. Without questioning the generous and liberal character of the parties as public benefactors, or doubting that they intended to pay the amount of the judgment out of their own purses, from pure love and affection for Peter Smith, or the corporation, we cannot see how this avails them.

We have already seen that they were not redemptioners; either as judgment debtors, judgment creditors or successors in interest.

If they purchased as individuals, to whom would the property belong? To them? It must belong to them, else they could not indulge their munificence. The title was with them, or they could not bequeath it to another. An analyzation of the question discussed, disperses all the shadows hanging about them, and elucidates the great principles of equity and justice which govern the case. As to tender or payment: The complaint sets forth that the appellants undertook to redeem the said property, and for that purpose did induce a certain firm of auctioneers in said city, upon the understanding that they should thereafter have the selling of the property as auctioneers, etc., to advance the money to use for such pretended exemption; or did borrow the same upon their private written agreement to pay, or see the same repaid, and no denial to this averment in the complaint appears in the answer. Therefore, it must be taken as confessed to be true.

Such pretended payment was made by delivering private checks of such individuals to the Sheriff. This was no payment under our laws. The Constitution forbids it.

This is emphatically a hard money State. In Section 34, Article IV, it is declared that no association shall make, issue, or put in circulation any bill, check, ticket, certificate or other paper, or the paper of any bank to circulate as money; and Section 35 prohibits by law any person or persons, association, company or corporation from exercising the privileges of banking, or creating paper to circulate as money.

Apply this to the question before us. In the answer it is alleged that the payment for redemption was made in the constitutional coin of the United States.

We cannot assent to the proposition that the private checks of the auctioneers upon Sanders, the appellant, although certified by him as being good, were coin, within the contemplation of the Constitution of the United States or our own.

We are referred to cases in New York to show that a tender of bank bills is a good tender. Such have been the decisions in cases where it appeared that no objection was made to such tender, for the reason that the party was deemed to have waived his right to specie payment. But it must be remembered that in that State all bills issued are under the general banking law, secured by State stocks, and the faith and credit of the State are pledged for their redemption. Even there, the righteousness and soundness of the decisions quoted have been much questioned.

Look for a moment at the position of Mr. Sanders--holding a Federal office, also assuming to be an officer under our State Government. Upon the inducement of certain auctioneers, he ventures forth to legislate for the city, and redeem property as a Commissioner, tax-payer and citizen.

The checks of the auctioneers and other individuals he causes to be presented at his own counter, and he certifies them to be good.

His certificate, indorsed on the checks of private persons drawn on himself, was not coin, nor was it a payment. We are met with the reply, that the Sheriff accepted them as payment; and he was responsible upon his bonds. But the parties were not to look to the Sheriff's bonds for their security. It might so happen in some cases in different parts of the State that the Sheriff's bond would not be sufficient security; his bondsmen might be irresponsible, or he prove a defaulter. It would be very unsafe to pronounce, that when a purchaser has paid his cash for property at Sheriff's sale, it can be redeemed in six months, and the buyer left to look to the Sheriff's bondsmen to get his money back.

The relators were not bound to take checks of private individuals, or indeed, of the Sheriff, as cash.

Again: How could the Sheriff decide as to taxes and assessments? He has no judicial authority, and could not determine as to whom the certified checks should be given, or how distributed.

In the case of Smith, the property was sold under proceedings commenced before the law passed. At the same time other property was sold under judgments of Carr, obtained subsequent to the passage of the Act.

Who can decide as to the right of purchasers under such sale? Or which should be subject to redemption and which not?

It is contended that the sale was announced by the Sheriff at the time to be subject to redemption; this announcement avails not. He could not change the laws, and we have already decided that the right was vested in accordance with the decisions of the United States Supreme Court, and the party plaintiff was entitled to sell absolutely. The Sheriff can neither change laws or conditions, or impose restrictions. The property was sold subject to the laws affecting the right of the judgment creditor, and to all those rights the purchaser became entitled.

Another argument advanced is, that the relators, not being parties privy to the contract, cannot set up objections as to the constitutionality of the law, or the mode of redemption. This will not suffice. The presumption is that they knew the law, and knowing it were aware that the sale was absolute; this may have induced them to purchase. Had they believed the property subject to redemption, they probably would not have purchased at all; it would be a dangerous rule to allow the Sheriff to sell property on execution subject to such restrictions and conditions as he should deem proper to impose. It might work great injustice in many cases.

It appears from the record that taxes and assessments were due upon the property in question.

The Sheriff could not adjudicate as to the sum due from each purchaser. In one part of the town a new street may have been opened, graded and planked; he who bought such property would be assessed to a considerable amount, while another, purchasing lots upon the water beach, would probably escape assessment altogether. The Sheriff could not thus exceed the bounds of his official duties.

From the considerations thus fully expressed, after an examination of all the authorities cited, we have arrived at the conclusion:

First, That it was not intended by the Legislature that the statute should have retroactive effect, or affect past transactions; but that it was intended to operate in futuro.

Second, That if such was the design of the Legislature, then the Act was unconstitutional, as impairing the obligations of contracts, and therefore void.

Third, That the redemption was not legally made. Because

I. The Mayor had no authority, acting as an executive officer.

II. The corporation never ratified his pretended act.

III. The City Attorney could not ratify it by plea, after suit brought.

IV. The Commissioners of the Funded Debt did not, either by a majority or a vote, attempt to redeem. They could only act by vote. Their act was, therefore a nullity. V. The appellant Sanders was constitutionally ineligible to hold the office of Commissioner of the Funded Debt, being a Federal officer, and therefore his act was void.

VI. No payment or legal tender was made, for reasons above assigned.

We must, therefore, in view of the whole case, having maturely considered every point suggested, approve of the finding of the Court below.

The judgment is affirmed, and it is ordered that a peremptory mandamus issue, commanding the Sheriff to make the deeds in compliance with the prayer of the complaint.

CONCUR

MURRAY

Mr. Ch. J. Murray delivered the following concurring opinion:

I concur in the conclusion to which my associate, Mr. Justice Wells, has come; but my opinion is based upon the grounds

1st. That the Act of April 29th, 1851, is prospective in its operation, and to give it a retrospect beyond the time of its passage, would be in violation of all settled rules of construction, destroying the uniformity of the statute, and, in many instances, impairing and unsettling the rights of litigants.

2d. That there was no legal redemption (as it appears from the finding of the Court below), made by any authorized person.

I had intended to have written a separate opinion, stating my views in extenso, but other business of the Court, as well as my want of health, have prevented. I shall therefore content myself with thus briefly stating the points of my concurrence, and shall reserve the liberty of filing an opinion at some subsequent time.

DISSENT:

HEYDENFELDT

Mr. Justice Heydenfeldt delivered the following dissenting opinion:

As this case is presented on the record, it is in effect a Bill in Chancery to enforce the specific performance of a contract for a sale of lands made by the Sheriff on execution.

It is true that it is brought in the name of The People upon the relation of the purchasers, and purports to be an application for the prerogative writ of mandamus, to compel the Sheriff to do a duty which it is alleged is enjoined on him by law. But it does not stop at this; it goes into a consideration of the time of the original contracts, and the rights of the parties under them, and propounds an investigation into the title of the City of San Francisco, the defendant in execution, into the title of the Commissioners of the Funded Debt, as successors by conveyance of the city, and into the legality of the acts of various parties, who united to effect a redemption of the property sold.

It must therefore be considered a proceeding of that character, which its nature and subject matter combine to give it.

The main reliance of the complainants in this case is, that the Act of 1851, which provides for a redemption of real property sold under execution, as far as it operates on contracts made before the Act, is in violation of the provision of the Federal Constitution, which prohibits a State from passing any law which impairs the obligation of contracts.

The argument used, and which is borrowed from the cases of Bronson v. Kinzie, 1 HOW 311, and McCracken v. Hayward, 2 HOW 608, is, that the remedy for enforcing a contract which is in existence at the time of making the contract, is a part of the contract, and cannot be taken away without impairing the obligation of the contract.

At the outset of this case, it would be difficult to say how this question can be raised according to the facts presented by the record.

The allegation of the bill is, that the city was indebted between the 15th of April, 1850, and the 29th of April, 1851; during the first seven days of which, the common law, unaided by any statute, afforded the remedy, and there is nothing in the record to remove the inference that the contracts were made within that period.

This would seem to me conclusive against the complainants, but as I will notice it more fully hereafter, I will proceed to give my opinion upon the constitutional question, as if no such difficulty intervened. I will not endeavor to take away from the opinions in the cases in 1 and 2 Howard, whatever of force was intended by the Judgeswho delivered them, upon the question now under review.

It is very certain that the Court was not unanimous: for in the first case is the dissenting opinion of Judge McLean, and in the second, Judge Catron declines to give any opinion on that point.

It is also certain that the decisions of both those cases might well have been made in the same way, without any reference to the constitutionality of the Illinois laws.

I am, therefore, inclined strongly to the view, that what the Judges said upon that question, is extra judicial. Chief Justice Vaughn, in Bole v. Horton, thus speaks of such opinions:

" An extra judicial opinion, given in or out of Court, is no more than the prolatum, or saying of him who gives it, nor can be taken for his opinion, unless everything spoken at pleasure must pass as the speaker's opinion. An opinion given in Court, if not necessary to the judgment given of record, but that it might have been as well given, if no such, or a contrary opinion, had been broached, is no judicial opinion, no more than a gratis dictum ." (Vaughn, 382.)

This is precisely true of the two cases referred to. The same judgment would have been given, if the Court had held the opposite doctrine on the constitutional question, and therefore, as far as that question is concerned, there is no judicial opinion, and upon it the Court should have been silent. Such was the course pursued by the same Court in the case of the Bank of the United States v. Halstead, (10 Wheat. 51), where the point certified was, whether a certain statute of Kentucky was repugnant to the Constitution of the United States. They there determined the case upon another question, and said: " This renders it unnecessary to inquire into the constitutionality of the law of Kentucky."

The great mistake which has been made in many cases consists in connecting the idea of the obligation of a contract with that of the remedy to enforce it. The two, I apprehend, have abstractly nothing to do with each other. There is a distinct meaning attached to each. The one belongs to the declaratory part of the law, which establishes the rights of persons and things, the other to the remedial, which enforces the right or redresses the wrong.

It is unnecessary here to go so far as to say that the legislative power may abolish or destroy remedies altogether, and yet such is the casein every statute of limitations, whereby it is said by law-writers, the right remains as before, but only the remedy is gone.

" The argument," says Judge McLean, " in favor of the statute (of limitations) is, that it does not act upon the contract, but withdraws the remedy. Now, if this be a constitutional exercise of power by a State Legislature, surely the exercise of the lesser power, by modifying the remedy at discretion, must also be constitutional. Does not the greater power include the lesser? The power, whether exercised in passing a statute of limitations, or in modifying the laws in relation to judgments and executions, acts upon the remedy. In both instances the enactments constitute the laws of the forum, and in my judgment, they depend upon the same power over the remedy."

The power of the Legislature, it has been decided by this Court, is only limited by express constitutional restrictions. (See Revenue Cases, ante, 46.)

Following this rule, I do not see what is to prevent it from limiting, modifying or delaying the remedy, even admitting the doctrine, that it cannot so alter the remedy as to impair the right.

And now I come to the question, whether by any rule of law, or by any rule of common sense, the Act of this State, which gives the right to sell lands under execution, and also provides for their redemption within six months, can possibly be obnoxious to the complaint that it violates the obligation of the contract.

It is said, if you admit the power to provide a redemption in six months, then it follows that the power exists to extend the time for ever. It is a sufficient answer to this, that every Act must be construed according to its own provisions, and their effects. So the question was asked in Bronson v. Kinzie: " Suppose the Legislature shall repeal all remedy; is the contract not thereby impaired?" To which the dissenting Judge aptly replies: " This question may be asked with no more propriety and effect than many others. May not a State fail to appoint judges, clerks and other officers essential to the administration of justice?"

To recur to the statute under consideration: How is it that a right in the judgment debtor to redeem his land within six months can injuriously affect the creditor? The only answer given is, that the land will not fetch as much money. But suppose the land of the debtor is ten times the value of the debt to be made, is it presumable that the power of redemption will prevent its selling for the amount of the debt?

I know no doctrine of the law which assumes that every debtor, or any debtor, has only land enough to pay a particular debt, when sold absolutely. And it seems to me, if a creditor complains that a law impairs his right under a contract, he must show the facts which go to prove the truth of his complaint. Would he be listened to in a Court of Justice when it appeared that, to satisfy a judgment of a few thousand dollars, he had levied upon property worth as many millions, and which, notwithstanding the right of redemption, would sell for greatly more than his debt? Under the law as it is, he can get his money; it is all he is entitled to; his contract, instead of being impaired, is fulfilled; he certainly cannot complain.

This view of the question, to say the least, must create a doubt as to whether in any case the law can impair the rights of creditors; and it is indisputable now that a law will not be declared invalid unless there is a clear and strong conviction of its repugnancy to the Constitution. (Fletcher v. Peck, 6 Cranch 87.)

So I conceive whenever it is said that the remedy infringes upon the right, it cannot be reasoned so as to be shown under any general rule, but must depend for its truth upon the particular facts of each case for which this new doctrine is invoked. Nor do I consider it by any means certain that property would sell for less money because of the right to redeem; and this as a fact, in order to allow it to affect the validity of the law, ought to be affirmatively shown by the record. It is a fact which the Court cannot judicially know; for although it may be said, that by the right of redemption there is still something left in the debtor, yet that something is so ideal and abstract, that it is impossible to affix to it any specific value, or, by any process of legal reasoning, to show how it detracts from the interest of the purchaser. The presumption of law is, that he buys the land at its value, and if it is redeemed he gets back his purchase money and interest. He incurs no loss; and it is therefore hard to say that he does not buy the whole.

But even if generally it were otherwise, yet under the liberal provisions of our statute in favor of the purchaser, I should come to the conclusion that such strong inducements are there held out, and such a premium offered, as would make the property bring fully as much money as if there was no provision for redemption.

The purchaser under this law is entitled to the rents and profits of the land, and upon a redemption is to receive in addition to his purchase money, eighteen per cent. thereupon, and all expenditures for taxes and assessments, and this whether the redemption takes place within one month or within six. Such an opportunity for favorable investment, in case a redemption should take place, I have never seen offered by any other law, and I cannot help thinking that instead of its being any detriment to the creditor, it is in direct aid of his remedy.

It was urged at the argument that there were here rapid fluctuations in the price of property; that the object of purchasers is speculation; that frequently in a short time land doubles in value, and for that reason the right of redemption will prevent a beneficial sale.

But it is sufficient answer to this, that while the law tolerates and protects all contracts which are fairly made, it has no especial regard for what are called speculations, and will not bend its rules in consideration of their existence. It has but one basis to regulate its view of the acquisition of property, and that is the " quid pro quo. " It assumes that upon a fair sale, property brings its value, and in no case, even of breach of covenant in the sale, will it let the purchaser recover either future speculative profits, or even the actual increase in the value of the land. He would be entitled simply to recover his purchase money and interest upon it.

The position I have taken upon the whole subject is fully sustained, notwithstanding the cases in 1 and 2 Howard, by the concurrent authority of every appellate Court before whom the same or an analogous question has been brought, as far as my investigation has enabled me to ascertain.

I do not think that the case of Quackenbush v. Danks, 1 Denio 128, can have any influence in this case. The facts are totally dissimilar; there the question was one of the total exemption of the debtor's property, by which the creditor had no remedy whatever.

Now even the strongest advocates for the doctrine that the remedy is a stipulation of the contract, do not deny that the Legislature may modify the character and extent of the remedy, so long as a substantial remedy is in fact left. (8 Watts & Serg. 49.) And I cannot tell by what reasoning it can be shown that under the California statute a substantial remedy is not left.

But independent of the inapplicability of the case in 1 Denio, from dissimilarity in the facts, a substantial cloud rests upon its authority, because it was the opinion of an equally divided Court, and was afterwards disagreed to in the case of Vedder v. Alkenbrack, 6 Barb. 327; and the opposite doctrine upon the same state of facts is expressly held in the case of Rockwell v. Hubbell, 2 Doug. 197.

Upon a statute similar in effect to the one under consideration, we have the opinions of the Supreme Courts of Pennsylvania, Alabama and Texas.

In Chadwick v. Moore, 8 Watts & Serg. 49, the statute which was attacked provides that at Sheriff's sales, unless the real estate brought two-thirds of its appraised value, the sale should be deferred for a year. Ch. J. Gibson, in the opinion of the Court, which he delivered, reviews the cases in 1 and 2 Howard, and in the face of them affirms the validity of the Pennsylvania law. He says: " Ifregulation of the remedy were prohibited whenever it might affect the fruition of the right in any imaginable degree, much wholesome legislation would be shut out." And again: " To hold that a State Legislature is incompetent to relieve the public from the pressure of sudden distress by arresting a general sacrifice of property by the machinery of the law, would invalidate many statutes whose constitutionality has hitherto been unsuspected."

In the case of Iverson v. Shorter , 9 Ala. 713, the law of that State provided for the redemption of the judgment debtor's real estate within two years after the Sheriff's sale. That Court also had before it the case of Bronson v. Kinzie, but it did not alter or affect their opinion in favor of the validity of the law. Judge Goldthwaite says:

" Conceding that a judgment creditor, at the time of this enactment, had, by his active diligence, acquired a lien on the real estate of his debtor, this may be said to be entirely without his contract, and is in no manner affected by it. The Legislature, as it seems to us, may modify, or even abolish all such laws, without in any manner impairing the obligation of the contract. Theanswer to the entire argument is, that the creditor has stipulated for no specific lien, and the only right under his contract is to have the same remedies as other creditors are entitled to by the general laws of the land. It might be contended with equal force that imprisonment for debt was contracted for, as that the right to sell the land of the debtor, was now a part of the contract."

In the case of Catlin v. Munger, 1 Tex. 598, the law examined was one of appraisement, similar to the one in Pennsylvania. The result of its examination was the same, and its constitutionality was upheld, notwithstanding the cases of 1 and 2 How. (See also Evans v. Montgomery, 4 Watts & Sergeant.)

1 come now to the review of a position taken in the argument, which, it seems to me, is difficult to treat as a separate proposition, because it is entirely involved in the constitutional objection already considered.

The argument is, that although the law is not obnoxious to any provision of the Constitution, yet it cannot, from its character, be made to operate upon sales on those judgments resulting from contracts made before its passage.

Now the language of the law is positive and plain, and is, therefore, not the subject of construction, for it has but one meaning.

It refers to " all sales," and meaning what it says, it necessarily intends to be applied to all sales made after its passage. So that, as far as regards the very subject matter of the law, it is entirely prospective.

Why then shall an exception be made in favor of sales under judgments on prior contracts? The law itself makes no such exception. There is and can be but one answer, which is, that it impairs the obligation, and so we would be carried back, to travel again over the constitutional grounds.

In the New York Act of Exemption, which was denounced in the case of Danks v. Quackenbush, the language is simply, " There shall be exempted," etc. Upon this, Judge Bronson says, " I will not deny that the general words in which the law is framed are broad enough to include contracts already in existence," and he refuses to give it a retroactive operation, because he considers it in violation of the Constitution.

The same reason prevailed in Bronson v. Kinzie and McCracken v. Hayward; and, indeed, in every case which can be cited where the retrospective operation of a law is denied as against its plain intent, it has been upon the constitutional objection.

If that objection did not exist, no other could. No one has denied the power of the Legislature to pass a retrospective law, and this Court, in the Revenue Cases, at the last term, has conceded to the legislative department all power which is not expressly denied by the fundamental law.

Judge Story says: " There are many laws of a retrospective character, which may yet be constitutionally passed by the State Legislatures, however unjust, oppressive or impolitic they may be." And again: " There is nothing in the Constitution of the United States which forbids a State Legislature from exercising judicial functions; nor from divesting rights vested by law in an individual: provided its effect be not to impair the obligation of a contract."

The same argument was made in the Alabama case, which I have before cited. It was there urged, on the side impeaching the validity of the law, that it ought not to be applied to sales made under judgments, which had been rendered prior to the law, and for the reason, according to my personal recollection of the argument, that the judgment had already created a lien upon the whole property, and this entitled the creditor to have the sale absolute, and it was said that the whole could not be sold so as to fulfil the obligation given by the lien, if the debtor could afterwards redeem. For there, as here, the complete right of redemption was tried to be distorted into an ideal estate. But the Court said: " There is no room to give this restriction, without departing from the very letter, which directs that all sales hereafter made" shall be governed by it. In New York these statutes are considered remedial, and as such, entitled to be construed in the most liberal manner, to advance the remedy. " With us, statutes giving a new remedy have frequently been construed to apply to suits then existing. And such is believed to be the general construction with respect to such statutes, unless the intention is apparent to restrict their operation."

If, therefore, the constitutional objection is not relied on, there is no substance in the position just considered which can avail the complainants.

But I will go a little farther into an examination of the claims of the parties to insist upon the right to have administered in their behalf a pre-existing remedial law.

The contract is alleged in the bill to have been made between the 15th of April, 1850, and the 29th April, 1851. During the first seven days of this time, the common law on the subject of remedies was alone in force; the Act to Regulate Proceedings in Civil Cases not having passed until April 22d.

The rule is familiar that all pleading must be taken most strongly against the pleader; or, in other words, he who asserts a right against another, must bring himself strictly, by his facts, within the rule of law which confers the right. We are, therefore, bound to consider the complainants' assertion of right in the most unfavorable view which their own allegations will admit, and consequently we are forced, for the purposes of this case, to assume that the contract was made within the first seven days of the period alleged, and if, as is insisted, the remedy is a stipulation of the contract, then they were alone entitled to remedies afforded by the common law.

The bill does not allege that the contracts were forming and continuing contracts, from the one period to the other, which, indeed, would be a solecism, but merely that, between the two days mentioned, the City of San Francisco was indebted, etc.

By the common law, lands were not subject to execution in any manner. It was not until the Stat. of Westminster 2, that the creditor was given the writ of elegit, and this only enabled him to obtain possession of one half of the debtor's lands, for such time as would enable the profits of the land to pay the debt.

Blackstone says: " By the common law a man could only have satisfaction of goods, chattels, and the present profits of lands; but not the possession of the lands themselves. No creditor could take the possession of lands, but only levy the growing profits; so that, if the defendant aliened his lands, the plaintiff was ousted of his remedy." (3 Black 418.)

The same doctrine will be seen to be maintained by Coke and other common law writers. Now if the strange doctrine is true, that the contract is made in reference to the remedy, then would the debtor here be enabled to assert, with reason, that her lands were not, in any wise, subject to the executions upon these contracts. But as I hold the doctrine to be an absurdity of modern days, which is attempted to be engrafted upon the body of our jurisprudence, to its great disfigurement, I will not pursue the argument upon such an hypothesis.

The Civil Practice Act of April 22, 1850, gave the remedy of selling lands under execution. The following year, and before the alleged judgments were rendered, that Act was repealed, and the effect of the repeal is, to take away all right to proceed under it, even in regard to suits pending at the time of the repeal. In Butler v. Palmer, 1 Hill 324, this question came up. It was a case where a right of redemption had been given by a statute which was repealed, and another passed, shortening the time of redemption. Judge Cowen, who delivered the opinion, says, " Independently of constitutional restraint, no approved writer can, I apprehend, be found, either on our own or the civil law, or the law of nature, who has denied the abstract power to repeal." (See also the cases there cited: Dale v. The Governor, 3 Stew. 387; The People v. Livingston, 6 Wend. 526.)

In regard to the effect of the repeal, the doctrine I have here laid down is most amply sustained by the opinion from which I have already quoted, and by the large array of authorities, both English and American, which are there relied on. They may be all summed up in the language of Lord Ch. J. Tindal, in Key & Goodwin, 4 Moore & Payne. He said, " I take the effect of a repealing statute to be to obliterate it as completely from the records of Parliament as if it had never passed, and that it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded whilst it was an existing law."

And Dwarris, an English commentator on statutes, says, " When an Act of Parliament is repealed, it must be considered (except as to transactions past and closed ) as if it had never existed." (P. 276.)

Nor is there anything in the repealing clause of the Act of 1851 which saves the complainants. The only saving clause is in the following words: " But such repeal shall not invalidate any judgment rendered, or order made, or any proceeding already taken by virtue of said statutes." This, it will be seen, even allowing it a most liberal construction, only prevents the nullity of proceedings, under the former law, as far as they have gone, but makes no reservation, such as can enable them to go on any further under the old law. It is indeed a familiar clause, in repealing remedial statutes, and its effect was fully considered in the case of The People v. Livingston, in 6 Wendell. There the repealing clause of the New York law was also much fuller, and more comprehensive in the terms of reservation which are employed.

It says: " The repeal by this Act shall not affect any act done, or right accrued or established, or any proceeding, suit, or prosecution had or commenced in any civil case previous to the time when such repeal shall take effect, but every such act, right and proceeding shall remain as valid and effectual as if the provision so repealed had remained in force."

In construing the effect of this clause, Ch. J. Savage says: " In my opinion, the effect is, that every suit, right, etc. remains in force, notwithstanding the repeal of the Act which supported them; but their future proceedings must be governed by the statutes in force, i. e. the Revised Statutes." And again: " It seems to me to have been the intention of the Legislature to confirm all rights which had accrued--to be enforced, however, according to the new remedy." He afterwards quotes, with approbation, from the opinion in the case of The People v. Herkimer Com. Pl., 4 Wend. 210, where Mr. Justice Marcy says: " Those statutes take up the proceedings in causes pending, where they find them, and where the statutes under which those proceedings were commenced are repealed, the subsequent proceedings must be regulated by the Revised Statutes." And the Judge Adds: " They must be so regulated, because there is no authority to continue those proceedings under any other statutes."

I have cited these authorities to show how devoid of reason and authority is the attempt of the complainants to hold that the property they claimed was sold under a repealed statute. For this is the only position which, on their side, admits them to say anything, because, under the common law, they had no right to sell the land whatever; and the land was sold, subject to redemption, by the same Act which gives the power to sell. I might also add that, if this Act was not merely remedial, being in derogation of the common law, it must be construed strictly; therefore, taking away, as it does, the exemption at common law of the debtor's lands, it must be rigidly construed, to secure whatever conditions are favorable to the debtor; for, if it gives the creditor a new right against the old law, he will only be allowed to take, stricti juris. Such, at least, would be the rule if, as the complainants insist, the statute affects the obligation of the contract, and not merely the remedy.

I now propose to examine whether, upon the supposition that the law is invalid because it impairs the obligation of the contract, the complainants will be allowed to set it up, so as to defeat the right of redemption. They are merely purchasers--but I will, for the sake of argument, suppose them to be subrogated to all the rights of the creditor.

The statute is a remedial one. If it is inapplicable to the contracts in question, then the parties to those contracts were entitled to some other remedy. Now it at once recurs to ask, did they pursue that other remedy? or did they not act, or seem to act, under the remedy prescribed by the existing general law? For I hold it to be an admitted principle that every law is presumed to be valid until it is declared otherwise by competent authority; and the general transactions of all persons are presumed to be conducted with reference to it, unless express notice is given to the contrary.

This must be peculiarly the case where remedies are concerned. It will not do for a party to apparently pursue the remedy under the existing law, and then, by insisting upon a different one, to surprise and entrap his adversary. This would truly be a specimen of sharp practice which the morality of the law will never tolerate. Nor is there to sustain the complainants upon this point one solitary decision. Even in the cases so much relied on, of Bronson v. Kinzie and McCracken v. Hayward, the application was there made in advance for the remedy under the old law, which the parties claimed they were entitled to. And I do not think it would, for a moment, be maintained by the most fertile imagination, that if, in those cases, the sales had proceeded under the existing law, the purchaser would have been listened to, in asserting a title not subject to redemption, or to set aside the sale because of the appraisement, on the mere ground that the creditor was entitled to a remedy, which he had failed to pursue.

In Barnet v. Barbour, 1 Lit. 396, the same decision was made. The Court say: " We admit that an individual whose rights are prejudiced by the operation of a law conflicting with the Constitution, has a right to demand of the judiciary a decision on the validity of the law; but such individual ought to show that his constitutional rights were infringed without his consent, and ought not to jeopardize his rights voluntarily by attempting to proceed under a law, and to take the benefit of it so far as to delude others into the dilemma, and then turn round and complain of constitutional injuries."

This was a case where the existing law required the land to be sold on a credit of one year, and the creditor was denied the right to raise the constitutional objection, because, by his agent, he had attended and bid at the sale. This was considered as a waiver of his right, as it evinced his intention of taking his remedy under the law.

To the same effect, precisely, are the following cases: The People v. Murray, 5 Hill 468; Chitty v. Glen, 3 Monr. 424; Evans v. Montgomery, 4 Watts & Serg. 218; Willard v. Longstreet, 2 Doug. 172; Hansford v. Barbour , 3 A.K. Marsh. 515.

But reason and authority go beyond this. The purchaser is not subrogated to the rights of the creditor. He is not permitted to raise this question. No right of his is violated; no contract of his is impaired. The only contract which he has made is at the Sheriff's sale. He is presumed to look to the law as it exists in governing the purchase which he makes, and that law is emphatically the law of his contract. He has no interest or concern in having the creditor satisfied of his debt, and it is no business of his to meddle with the remedy which the creditor has adopted, whether it be unconstitutional, or operates retrospectively.

To permit such a thing would be a gross solecism in law and reason. In the case of Iverson v. Shorter , 9 Ala. 713, the Court say: " We dismiss, then, the constitutional question, with the brief remark, that if the statute was open to objection on this score by a creditor, it would scarcely avail a purchaser, who takes all his rights by virtue of the specific legislation."

So in the case of Evans v. Montgomery, 4 Watts & Serg. 218, the Supreme Court of Pennsylvania say: " Montgomery, the purchaser, has no reasonable ground of complaint, because the Act was passed several months prior to his purchase, and therefore he is to be considered as well aware of it, and as buying under its authority, and subject to its provisions."

So in the case of Rudd v. Schlatter, 1 Lit. 19. The Supreme Court of Kentucky say (after referring to a case in which they had just before decided that the judgment debtor could not make the objection under review:)

" It is now to be decided, whether the purchaser can do it. It is stated in the case just cited, that the rights of the creditor alone, if there is an injury, are injured by the provisions of the law as between him and the debtor, and we cannot see how the rights of the purchaser are made worse by the law, even admitting its repugnance to the Constitution. The purchaser has no interest in the question until he makes the purchase. The Constitution in this respect does not secure, nor does the law take away anything from him by indulging the debtor whose estate is sold. If that estate is sold for ready money, the purchaser knows it; if on a credit, he makes his contract accordingly, and must fulfil it; and ought not to be entitled to relief because the creditor, who holds the bond and asserts its validity, has had his constitutional claims infringed." (See also Russell v. Dudley, 3 Met. 147.

The next point I shall consider is, whether the redemption in this case was effectual under the law. And, first, as to the redemption by the Mayor of the city. My opinion as to the principles of law which settle this matter, makes it unnecessary for me to run into a commentary of any length. The objection made to it is, that it does not appear to have been made, or afterwards approved by the authority of the Common Council of the city by act, ordinance or resolution. The answer to this is free from any embarrassment. It is a familiar rule, that whatever is done for the benefit of a party is presumed to be done by his authority, or to have been immediately adopted. (See Bailey v. Culverwell, 8 B. & C. 448; Camp v. Camp , 5 Conn. 291; Church v. Gilman, 15 Wend. 656; Jackson v. Bodle, 20 Johns. 184; Merrills v. Swift , 18 Conn. 257.)

The immediate influence of the action of the Mayor in redeeming this property, was its restoration to the city. If it was done by paying the money of the city, this would be conclusive proof of authority, because he is not the keeper of the exchequer, and could not obtain possession of it without her assent. If, on the other hand, it was a personal advance of his own money, as he could not create a legal obligation against the city for its repayment, it is a benefit so distinct and munificent, that her acceptance and adoption cannot be questioned. The presumption of law in cases of this kind, is founded upon beneficence and reason combined, and it will not be allowed to be overcome, except by the express declaration of the beneficiary to the contrary.

I see no reason why the full scope of this rule should not avail a municipal corporation as well as a natural person.

In addition, however, to this presumption, we have the fact, that the city, in two months after the redemption, comes into Court, and by her answer in this cause, affirms the Act, and claims all the benefits to be derived under it.

This is, in my opinion, a sufficient expression of assent, even if any was required, which I do not believe, for in many of the reported cases assent is implied from acts partaking of the benefit, long after it was conferred.

Paley says: " As an authority may be presumed from previous employment in similar acts, so the same presumption arises from subsequent acts of assent or acquiescence; and a small matter will be evidence of such assent." (Paley on Agency, 171.)

Nor is there any pretense for the assertion that this acquiescence comes too late, when it appears for the first time, by the pleadings in a suit where it is the subject of the controversy.

In the case of Roe ex dem. The Dean and Chapter of Rochester v. Pierce, 2 Campbell 96, it was held that the bringing of the ejectment was sufficient to show that the plaintiff had adopted the act of an agent who gave notice to quit, where there appeared no express authority for it.

So in Smith v. Hodson, 4 Term. R. 211, a bankrupt, on the eve of his bankruptcy, sold goods to a creditor with a view to a fraudulent preference; but the assignees having brought an action of assumpsit, the form of the action was held to be an affirmance of the sale, so as to entitle the creditor to set off his debt.

And so it is in all such cases, for it is held that by the suit the party adopts the act, and it does not lie in the mouth of his adversary to say that the act relied on was without authority.

(See also Hagedorn v. Oliverson, 2 Maule & S. 485; Robinson v. Gleadow, 2 Bingh. N.C. 156.)

In the second place, what is the objection to the redemption as made by the Commissioners of the Funded Debt? The allegations of the bill show that, previous to the recovery of the judgments under which the sale took place, the property in question, or a part of it (and which part is not distinguished), was conveyed by the city to the Commissioners of the Sinking Fund, and by authority of an Act of the Legislature, from the Commissioners of the Sinking Fund to the Commissioners of the Funded Debt.

By the Act of the Legislature referred to in the bill, the Commissioners of the Sinking Fund are appointed and required to convey to the Commissioners of the Funded Debt all the property of the city, without any exception. So, if in the conveyance under the authority of the Act, any portion of the lands of the city were omitted, this cannot be set up to affect the substantial rights of the parties in a court of equity. I am not sure that the Act itself does not operate as a legislative conveyance even of the legal title; for there seems to me to have been no necessity for the conveyance directed by the Act, except for the mere purpose of conformity. Butbe this as it may, if there are omissions in the deed, a Court of Chancery would reform it so as to carry out the directions of the Legislature; and without this, in deciding upon the rights of parties, it will apply its own maxim, and consider that as done which ought to be done.

It follows, necessarily, from this view, that the Commissioners of the Funded Debt had the legal or equitable title to all of the lands in controversy, before the judgments and sales under which the complainants claim, and therefore they were the successors in interest of the city. It is alleged in the bill that the conveyance to them was fraudulent and void as to third persons; but this is neither shown by the evidence nor found by the Court. It seems to depend upon a naked allegation that it was so decided in some other case. No such point was made in the argument, because, as I suppose, its futility was too apparent. I only mention it here to show that it has not escaped my attention.

The only argument which seems to be relied on against the validity of the redemption made by the Commissioners is, that it appears from the finding that only two of the Commissioners participated in the act of redemption, whereas it is said it should have been the act of the whole Board. But there is no room for such an objection upon the face of the record, and the complainants are estopped from it by the pleadings.

The bill alleges the redemption to have been made by the Commissioners of the Funded Debt, eo nomine. It makes them all parties, and they come in and answer, admitting the act, as alleged, to be their act. No such issue was made. If it had, doubtless the proof would have been procured to show that the two Commissioners acted by authority of the whole Board.

It is again objected that a gross sum was paid to the Sheriff, and it is insisted that he should have been paid the amounts separately belonging to each purchaser.

With this, I will also consider the objection, that no money was offered as interest upon taxes and assessments. I consider both objections as technical and trivial. The Sheriff is the officer to whom the money must be paid. He is the agent of both parties, and he has the information upon his books by which he can ascertain, with accuracy, the sums respectively due. The object of the law is simply that the purchasers shall receive the money, and if enough is paid to the Sheriff, in gross, to carry out this object, it is immaterial, as far as the rights of the defendant in execution are concerned, what disposition is made of it. From the time of the receipt of the money by the officer, he is liable to the parties entitled to it.

If there had been any taxes or assessments, it ought to have been shown; in other words, the payment should have been proved to have been insufficient to satisfy the provisions of the law, and this alone could have defeated the redemption.

I have now finished what I had to say about the merits of this cause. Because the majority of the Court have come to a conclusion widely different from mine, I have, contrary to my usual custom, discussed this case at great length, and have carefully examined every question which was seriously urged upon the argument.

Although I deeply regret this difference of opinion, yet, after the most mature reflection and study, I can see no reason which can possibly operate to procure my concurrence in the conclusions of my associates, and I have only to add that I dissent totally therefrom.